Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, December 25, 2005

So who does own the holiday gifts?

As wrapping paper flies these days, few are considering whether the gifts they give and receive are really gifts.  Yet divorce has a way of re-wrapping some of those gifts. 

In states that characterize any property acquired during the marriage as marital property, with the exception of that property acquired by gift, what becomes of a interspousal gift? In Virginia, statutes provide that interspousal gifts are presumed to be marital property. Thus, even gifts between spouses are marital property unless the presumption is rebutted. So, for example, the Virginia Court of Appeals required wife to prove that when husband made gifts of jewelry to her, he "relinquished all present and future dominion over the property." The court reviewed cases on the subject and concluded: "The principles that emerge from the cases addressing the classification of property which has been the subject of interspousal gift do not depend upon the classification of the source of the property but rather upon whether one party by clear and express language intended to give the asset as the other spouse's separate property or merely intended to make a gift during the marriage, which becomes marital property. Where the facts clearly and unambiguously support the conclusion that one of the parties has relinquished all right and interest in marital property and has transferred those rights unconditionally to the other, to the exclusion of the donor's continuing claim upon the property as a marital asset pursuant to Va. Code Ann. ยง 20-107.3, a separate property right will be found to exist." Since wife was not able to provide "clear and unambiguous evidence that the husband expressed an intent to transfer the jewelry into wife's name as her sole property" the jewelry was marital property. McCreery v. McCreery, 2005 Va. Cir. LEXIS 131 (July 6, 2005) Perhaps there is a market for attorneys to draft gift cards? bgf

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